Bill 218 Offers COVID-Related Civil Liability Protection, But Does it Go Too Far?

An elderly man being assisted by a woman, representing the effect of COVID on long-term care homes

In a previous blog, we considered the possibility that litigation would surge in relation to fallout from the ongoing COVID-19 pandemic, and what kind of impact a potential increase in cases would have on how courts interpret the issues at hand. One recent development sure to have a dramatic impact on certain litigation relating to COVID-19 is Ontario’s Bill 218, the Supporting Ontario’s Recovery Act. The Bill, introduced by Attorney General Doug Downey in October, would see limitations placed on liability for individuals and businesses with respect to civil claims for COVID-19 infections. While the provincial government has said the Bill will protect those who have made an “honest effort to follow public health guidelines and laws relating to exposure”, there are others who say the Bill will unfairly disadvantage those who have suffered due to negligence.

How Does Bill 218 Propose to Limit Liability?

The Bill seeks to place a limit on liability for injury or death from the spread of infection in cases where the person or institution in question made a “good faith effort” to stay up to date on, and abide by, the advice of federal and provincial health authorities. As an example, let’s say an employee at a store became infected but was asymptomatic and therefore didn’t know it. If they interacted with 20 customers during this period and 5 became infected, the Bill would likely extend liability protection to the employee if the proper protocols had been in place, such as social distancing measures, mandatory face coverings, and so on.

The Bill extends protections to any person, which is defined as “any individual, corporation or other entity, and includes the Crown in right of Ontario”. In the example above, this means that not only would the employee be protected, but also the store itself, again, as long as the proper protocols were in place. In a situation like this, the protection seems logical, however, there are those who say the Bill has the potential to go too far.

Critics of Bill 218 Say it Can Be Used as a Weapon Against Legitimate Claims

The industry facing the highest number of claims related to COVID-19 infections by far is the long-term care industry, which has been hit particularly hard. Over 60% of the COVID-related deaths in Ontario have been residents of long-term care (LTC) homes, as of November 15th. Individual LTC facilities, as well as their parent corporations, are already the subject of numerous civil suits throughout Canada, including more than one class action. Those seeking compensation for the loss of their loved ones now fear that Bill 218 will significantly impede their ability to seek justice.

While the provincial government says that the Bill will not protect “bad actors” from liability, the wording of the Bill does it make it more difficult to prove culpability. As opposed to simply proving negligence, litigants must now meet a threshold of ‘gross negligence’, as set out in section 2(1)(b) of the Act. Critics say this standard makes it much more difficult for individual families with limited resources to go up against large and well-funded companies that own the majority of LTC homes in the country.

In response to these concerns, Doug Downey issued the following statement to the CBC:

We want all Ontarians to know that individuals and organizations that deliberately ignore public health guidance or act with gross negligence or intentional misconduct will not be protected by this legislation. The narrow, targeted, civil liability protection in this legislation has only to do with the inadvertent transmission of COVID-19, and will provide protection only to those who acted in good faith and made an honest effort to follow public health guidance and laws respecting COVID-19.

This legislation does not protect any other type of negligence, like if a resident is malnourished and is not given proper medication, or if a long-term care provider fails to provide the necessities of life, have adequate staffing, or communicate adequately with families.

The words are little comfort to those who view the Bill as extending sweeping protections to big business at the expense of individual families. One critic, Director of the Advocacy Centre for the Elderly Graham Webb, has said that LTC facilities and the like should be removed completely from the protections under Bill 218:

Good public policy demands that they should be held accountable in damages when they cause harm or injury to their residents through their acts or omissions that amount to either negligence or gross negligence.

The Bill is currently in its Third Reading, with many interested parties, advocates and families in opposition. We will continue to watch the status us Bill 218 and will provide updates as necessary.

The lawyers at Prudent Law in Mississauga are trusted advocates in any type of civil litigation, including contract disputes. We provide practical advice and experienced representation to corporate and individual clients in a wide variety of matters. If you are facing a legal dispute and you’d like to discuss your options with one of our experienced litigation lawyers, please call us at 905-361-9789 or contact us online.

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